Ex Parte Austin et al

Patent Trials and Appeals Board

Jan 22, 2019

13483487 - (D) (P.T.A.B. Jan. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/483,487 05/30/2012
101011 7590 01/24/2019
Brooks Kushman P.C. / Masco Corporation
1000 Town Center, 22nd Floor
Southfield, MI 48075
FIRST NAMED INVENTOR
James Allen Austin III
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
MASLH0108PUS 1036
EXAMINER
ALLEN, WILLIAM J
ART UNIT PAPER NUMBER
3625
NOTIFICATION DATE DELIVERY MODE
01/24/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES ALLEN AUSTIN III, PATRICK WILLIAM BOEHNEN,
MATTHEW JAMES KLEIN, RICHARD L. ROETKEN, MARCUS
BOSCH, GERAINT KRUMPE and NATALIE A. SCHRAUFNAGEL
Appeal2017-006613
Application 13/483,487 1
Technology Center 3600
Before JOSEPH A. FISCHETTI, BRUCE T. WIEDER and
AMEE A. SHAH, Administrative Patent Judges.
FISCHETTI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's Non-Final Rejection of claims 1, 2, 5-11, and 21-30. We have
jurisdiction under 35 U.S.C. § 6(b ).
SUMMARY OF DECISION
We AFFIRM.
1 Appellants identify LIBERTY HARDWARE MFG. Corp. as the real party
in interest. (Appeal Br. 4).
Appeal2017-006613
Application 13/483,487
THE INVENTION
Appellants' claims relates to shower door assemblies; and retail
displays and methods for displaying shower door assemblies. Spec. ,r 1.
Claim 1 reproduced below, is representative of the subject matter on
appeal.
1. A retail shower door display assembly comprising:
a point-of-sale display unit sized to be received within a retail
store aisle;
an array of various shower door frames oriented within the
display unit; and
an array of various shower door glass panes oriented within the
display unit;
wherein each of the various shower door frames is packaged
separately; and
wherein each of the various shower door glass panes is
packaged separately.
THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
McCoy
Ruppel et al.
Kuzman
Melillo et al.
Wisecarver et al.
Ricereto
Non-Patent Literature:
us 1,841,620
us 4,429,791
us 5,368,486
us 6,102,502
US 2008/0148692 Al
US 2009/0115299 Al
Jan. 19, 1932
Feb. 7, 1984
Nov. 29, 1994
Aug. 15, 2000
June 26, 2008
May 7, 2009
Therma-Tru Door, 2010 Door Gallery Displays,
www.thennatru.com/trade-profossional/dpprga11erdisplays.aspx (last visited
July 10, 2010). (Recovered from www.Archive.org)
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Application 13/483,487
The following rejections are before us for review:
Claims 1, 2, 5, 8-11, 23-26, and 29 are rejected under 35 U.S.C.
§ 103(a) over McCoy in view of Therma-Tru and Ricereto.
Claims 6, 7, 21, 22, 27, 28 and 30 are rejected under 35 U.S.C.
§ 103(a) over McCoy, in view ofTherma-Tru and Ricereto, and in further
view of Melillo.
Claims 1, 5-10, and 21-30 are rejected under 35 U.S.C. § 103(a) over
Kurzman in view of Wisecarver and Ruppel.
Claim 11 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Kurzman in view of Wisecarver and Ruppel, and further in view of
Therma-Tru.
FINDINGS OF FACT
1. We adopt the Examiner's findings as set forth on pages 3-21
(excluding findings for claim 30 on page 21-26) and on pages 27--43.
2. Therma-Tru page 6 shows an array of door and lite panel inserts as
follows:
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Application 13/483,487
Page 6 of the Therma-Tru shown above shows an array of door
gallery displays.
3. Thenna-Tru page 6 of (FF. 2) discloses:
At array A, a DOOR SYSTEM UNIT of assembled entryways:
"Interchangeable, exterior facade graphics frame the entryway allowing
shoppers to visualize the door system in a setting similar to their own home.
Choose from brick, siding, stone and stucco."
At array B, a SWING UNIT of hinges doors: "Standard units hold
four displays up to 8 ', and each door can swing up to 160 degrees for a wide
viewing angle. Optional hardware kit allows the unit to hold up to eight
display doors."
At array C, a LITE DISPLAY of decorative glass panels: "Flexible
design holds seven or more rectangular door lites that can easily be
changed."
4. The Examiner found,
The complete display system of ThermaTru
includes an array for door frames/panels [ see at
least: p. 1 box 1 and 4, p. 2 box 1, p. 4 box 1, p. 6
elements B-B2, p. 6 box 3] and array for glass
panels appropriate for the door frames/panels [ see
at least: p. 1 box 3, p. 2 box 2, p. 3, p. 6 elements
C-Cl, p. 6 box 4]. Thus, ThermaTru discloses the
retail display of door frames/panels, and their
accompanying glass panels.
(Non-Final Act. 9).
5. Ricereto discloses an object of its display is to "allow for suitable
interaction with the product being displayed." (Ricereto, ,r 3).
6. McCoy discloses that an object of its display is to present product
for inspection "whereby economy of time is attained." (Col. 2, 1. 4).
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Application 13/483,487
ANALYSIS
35 U.S.C. § 103(a) REJECTION
Claims 1, 2, 5, 8-11, 23-26, and 29 rejected under 35 US.C.
§ 103 (a) over McCoy in view of Therma-Tru and Ricereto.
The Appellants argued claims 1, 2, 5, 8-11, 23-26, and 29 as a group.
(Appeal Br. 12). Claim 1 is the representative claim for this group (Appeal
Br. 13), and the remaining claims stand or fall with claim 1. See 37 C.F.R.
§ 4I.37(c)(l)(iv) (2015).
Appellants argue,
This alleged motivation to combine is not
supported by the record. The record supports
packaging smaller commodities individually
(Ricereto) and displaying larger commodities
assembled (McCoy and ThermaTru). Notably, the
ThermaTru reference discloses a display of an
assembled door, not shower door components
packaged separately as claimed.
(Appeal Br. 13).
The Examiner found,
Both McCoy and Ricereto (and ThermaTru, for
that matter) exemplify exhibition of commodities
in order to allow a customer to more easily and
more thoroughly inspect a commodity. Ricereto,
though, takes this one step further in disclosing a
packaged commodity that can be purchased housed
approximate [sic] to the exhibited commodity. No
portion of McCoy precludes combining the display
of McCoy in such a manner as to have packaged
commodities nearby to the exhibited commodities.
The same can be said for ThermaTru.
(Answer 37-38).
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Application 13/483,487
We agree with the Examiner.
First, to the extent Appellants seek an explicit suggestion or
motivation in the reference itself, this is no longer the law in view of the
Supreme Court's holding in KSR Int'! Co. v. Teleflex Inc., 127 S. Ct. 1727,
1741 (2007). Since the Examiner has provided some articulated reasoning
with some rational underpinning for why a person with ordinary skill in the
art would modify McCoy to include the Therma-Tru displays (Non-Final
Act. 9, (FF. 2--4)) and the prepackaged products of Ricereto (Non-Final
Act. 10), Appellants' argument is not persuasive as to error in the rejection.
Second, the proposed combination meets the claim requirements. The
Examiner found that, "McCoy discloses a retail product assembly
comprising a first and second array of commodities, in this case tiles [ see at
least: p. 1 lines 56-63 ( one series on one side, a second series on the
opposite side), p. 2 lines 22-24, p. 2 lines 53-62 Fig. 1-2]." (Non-Final
Act. 8). The Examiner also found that "the complete display system of
ThermaTru includes an array for door frames/panels." (FF. 4). The
Examiner also found that Ricereto discloses a "drawer defining a
compartment adapted to contain packages of corresponding commodities
[ see abs, 003 8, Fig. 6 (p, p2)]. .. [which] packaged commodities available
for purchase are packaged separately and oriented adjacent to the sample
commodity." (Non-Final Act. 10). Thus, the combination of McCoy,
Therma-Tru, and Ricereto contains teachings which together meet the claim
requirements. That the doors in Therma-Tru are outside doors, and not
shower doors, is not of consequence because each is similar in terms of
display requirements in that each is largely planar and requires vertical
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orientation to be used and hence displayed, and each permit/restrict entry
into a space.
We thus agree with the Examiner that one of ordinary skill in the art
looking to the packaged items in the display of Ricereto (Figure 6) would
have known to similarly package the doors and lite panel in displays A and
B of Therma-Tru, because packaging would aid in ease of handling of the
item as it is transported from the store to the job site.
We further disagree with Appellants that "ThermaTru, [] does not
offer separately packaged door panes and frames as claimed. Therefore,
ThermaTru teaches away from the combination of references." (Appeal
Br. 14). This is because the displays in Therma-Tru (FF. 2, 3), like the
displays in Ricereto and McCoy (FF. 5, 6), are all concerned with presenting
a consumer with flexible and efficient purchasing options while shopping.
Thus, Therma-Tru does not actually discourage a person of ordinary skill
"from following the path set out in the reference, or would [lead a person of
ordinary skill] in a direction divergent from the path that was taken by the
applicant." See In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994).
Appellants' arguments to claims 23-26 and 29 only reference excerpts
from the Specification describing problems solved by "the solutions claimed
in claims 23-26 [which] are nonobvious over the combination of
references", without pointing to specific language in the claims which effect
the generalized solution and without pointing to specific parts of the
references which do not meet the claim language. (Appeal Br. 16).
Therefore, the arguments are not persuasive. A general allegation that the
art does not teach any of the claim limitations is no more than merely
pointing out the claim limitations. A statement which merely points out
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what a claim recites will not be considered an argument for separate
patentability of the claim. 37 C.F.R. § 4I.37(c)(l)(vii).
Claims 6, 7, 21, 22, 27, 28 and 30 rejected under 35 USC§ 103(a)
over McCoy, in view of Therma-Tru and Ricereto, and in further view of
Melillo.
Appellants' arguments to claims 6, 7, 21, 22, 27, and 28 merely state
that they "are nonobvious for at least the reasons stated above with reference
to claim 1" (Appeal Br. 16), and therefore they are not persuasive for the
same reason given for claim 1.
Appellants' specific arguments to claim 3 0 states "sequential ordering
of products displayed" is not disclosed in the references. (Appeal Br. 19).
We agree. Claim 30 recites,
wherein the first array of various shower door
frames, the first array of various shower door glass
panes, the second array of various shower door
frames, and the second array of various shower
door glass panes are arranged sequentially in
order of a prescribed selection process of shower
door type, and then shower door frame and shower
door glass pane ( emphasis added).
Nothing in the combination of McCoy, or Therma-Tru discloses or suggests
the sequential arrangement of the claimed first and second arrays as
highlighted in italics above. The Examiner's reliance on Melillo is to show
that, ' [ e Jach array may be disposed in an appropriate housing (i.e. point of
sale display) [see at least: p.1 line 60, p. 2 lines 13-17, p. 2 lines 25-29] the
housing for use by a salesman in a showroom." (Non-Final Act. 21 ). It is
not apparent and the Examiner has not explained how the disclosed array
used by a salesman meets the claims arranged sequentially in order of a
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prescribed selection process of shower door type, and then shower door
frame and shower door glass pane. Therefore, we do not sustain the
rejection of claim 30 under this rejection.
Claims 1, 5-10, and 21-30 rejected under 35 USC§ 103(a) over
Kurzman in view of Wisecarver and Ruppel.
The Appellants argued claims 1, 5-10, and 21-29 as a group. (Appeal
Br. 19-20). Claim 1 is the representative claim for this group, and the
remaining claims stand or fall with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv)
(2015).
Appellants argue Wisecarver teaches away because "Wisecarver
packages the 'associated hardware/header rails' with the shower doors, not
in a separate array as claimed, to be 'secured from view, vandalism, and
theft."' (Appeal Br. 19).
We disagree with Appellants. According to Wisecarver, the disclosed
packaging is to encourage sales in that it is "configured to display the
panel(s) to a consumer at the time of sale while also safeguarding the
panel(s) and associated hardware during transit and at the time of sale."
Wisecarver, ,r 3. Likewise, Kurzman discloses that its display is to enable
"relative[ly] unskilled workmen to select and install cabinetry in a pre-
planned arrangement at lower costs." Kurzman, col. 1, 11. 45--46. We thus
find that at least because Wisecarver teaches a package "configured to
display the panel(s) to a consumer at the time of sale," it does not teach
away from Kurzman's goal of enabling workmen to select items, because
both goals are consistent with each other. See In re Gurley, 27 F.3d at 553.
Appellants' arguments on page 20 of the Brief to claims 23-30 only
reference excerpts from the Specification describing problems solved by
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"solutions to these problems [] addressed in claims 23-30" without pointing
to specific language in the claims which effect the generalized solution and
without pointing to specific parts of the references which do not meet the
claim language. Therefore, these arguments are not persuasive. A general
allegation that the art does not teach any of the claim limitations is no more
than merely pointing out the claim limitations. A statement which merely
points out what a claim recites will not be considered an argument for
separate patentability of the claim. 37 C.F.R. § 4I.37(c)(l)(vii).
Appellants' arguments to claim 11 on 6, page 20 likewise merely state
that they "are nonobvious for at least the reasons stated above with reference
to claim 1" and therefore they are not persuasive for the same reason given
for claim 1.
CONCLUSIONS OF LAW
We conclude the Examiner did not err in rejecting claims 1, 2, 5-11,
23-26, 29 under 35 U.S.C. § 103(a) over McCoy in view of Therma-Tru and
Ricereto.
We conclude the Examiner did not err in rejecting claims 6, 7, 21, 22,
27, 28, and 30 under 35 U.S.C. 103(a) over McCoy in view ofTherma-Tru
and Ricereto, and further in view of Melillo.
We conclude the Examiner did err in rejecting claim 30 under
35 U.S.C. § 103(a) over McCoy in view of Therma-Tru, Ricereto and
Melillo.
We conclude the Examiner did not err in rejecting claims 1, 5-10, and
21-30 under 35 U.S.C. § 103(a) over Kurzman in view of Wisecarver and
Ruppel.
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We conclude the Examiner did not err in rejecting claim 11 under
35 U.S.C. § 103(a) over Kurzman in view of Wisecarver and Ruppel in
further view of Therma-Tru.
DECISION
The decision of the Examiner to reject claims 1, 2, 5-11 and 23-30 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED.
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